Promissory Notes

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AGREEMENT AMENDING PROMISSORY NOTE DATED JUNE 30, 2002 EXECUTED BY
VISEON, INC PAYABLE TO MICHELLE NORWOOD
AMONG
MICHELLE NORWOOD
and
VISEON, INC.
Executed June 30, 2003
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THIS AGREEMENT AMENDING PROMISSORY NOTE is entered into on
this 30th day of June 2003 (this "Agreement"), by and among VISEON, INC.
f/k/a/ RSI SYSTEMS, INC., a Nevada corporation ("Borrower"), and MICHELLE
NORWOOD, ("Lender").
RECITALS
WHEREAS, on or about the 30th day of June 2002, Borrower executed that
certain Promissory Note payable to Lender in the original principal amount of
One Hundred Thousand Dollars ($100,000) (Hereinafter the "Existing Note"); and
WHEREAS, In connection with execution of the Existing Note, Borrower
issued that certain warrant to purchase One Hundred Eighty One Thousand Eight
Hundred Eighteen (181,818) shares of its common stock to the Lender (hereinafter
the "Original Warrant"); and
WHEREAS, Borrower has defaulted in the payment of installments of
interest pursuant to the terms of the Existing Note; and
WHEREAS, in consideration of Lender's agreement to waive certain Events
of Default that have occurred and/or are continuing as of the date hereof,
Borrower and Lender have agreed to (i) cancel the Original Warrant, ab initio,
and issue in exchange therefor a replacement warrant priced in accordance with
the terms of this Amendment and (ii) amend the terms of the Existing Note
regarding the price per share of the Conversion Shares issuable thereunder and
(iii) amend the terms of the Existing Note regarding the payment of installments
of interest; and
WHEREAS, it is the intention of the Borrower and the Lender that the
terms and other provisions of this Agreement supersede only those terms and
provisions contained in the Sections of the Existing Note entitled "This Note is
due and payable as follows" and "Special Provisions", that the terms and other
provisions of the Existing Note remain unchanged and that the Lender as Holder
of the Existing Note shall continue to be entitled to all of the rights and
benefits contained therein modified only by the amendments provided for herein;
and
WHEREAS, it is the desire of the Borrower and Lender to amend only
those certain terms and provisions of the Existing Note as specifically set
forth herein.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt, and adequacy of which are hereby acknowledged by all
parties hereto, Borrower and Lender agree to amend and restate the Existing Note
provisions as set forth hereinbelow. All terms and provisions of the Existing
Note not specifically addressed herein remain unaffected. The Existing Note
shall continue to be a valid and existing debt obligation of Borrower
enforceable in its entirety, modified only by the amendments thereto set forth
in Paragraph 2 herein as follows:
:
1. Acknowledgement of obligations under Existing Note. Borrower hereby
acknowledges and agrees that Lender funded to Borrower the Principal Amount (as
defined in the Existing Note and having the same meaning when used herein) of
the Existing Note, that Borrower actually received the Principal Amount form
Lender and that Borrower has not repaid any portion of the Principal Amount nor
any installment of interest due thereon to Lender. Borrower further acknowledges
and agrees that the Existing Note, inclusive of the Principal Amount and all
interest accrued thereon from the date of the execution thereof through the date
hereof remains unpaid, constitutes a valid and existing debt obligation of
Borrower, that Borrower has no defenses to its obligation to pay the Principal
Amount and all interest accrued thereon from the date of the execution thereof
through the date hereof and that Borrower has no right to any offsets or other
deductions therefrom.
2. Amendments to Existing Note. The following sections of the Existing Note
entitled "This Note is due and payable as follows" and "Special Provisions"
shall be amended and superceded by the terms and provisions set forth
hereinbelow. The remaining terms and provisions of the Existing Note remain
unaffected and the Existing Note shall continue to be enforceable in its
entirety, modified only by the amendments as follows:
2.1 Amendment of Section entitled "This Note is due and
payable as follows". The Section of the Existing Note
entitled "This Note is due and payable as follows"
contained on page 1 is hereby amended by deleting such
Section in its entirety and replacing it with the
following:
This Note is due and payable as
follows: On December 31, 2003, all Principal
and all accrued but unpaid interest shall be
due and payable in full. All payments
hereunder shall be applied first to the
payment of interest and then to the
outstanding Principal Amount.
Notwithstanding Any Other Provisions
Of This Note, In No Event Shall The Amount
Of Interest Payable Hereon Exceed The
Maximum Amount Of Interest Permitted To Be
Charged Or Payable Hereon By Applicable Law.
2.2 Amendment of Section entitled "Special Provisions". The
Section of the Existing Note entitled "Special
Provisions" contained on page 3 is hereby amended by
deleting such Section in its entirety and replacing it
with the following:
Special Provisions.
A. Conversion Shares: Any amount due
any Holder hereunder (at maturity or
upon Acceleration) including all
Principal and interest, may be
converted at the option of any
Holder, in whole or in part, in a
single transaction or series of
transactions, to common stock of the
Company, par value $0.01 per share,
at the conversion price of Thirty
Cents ($.30) per share (the
"Conversion Shares"). When issued
and delivered, all Conversion Shares
shall be duly authorized, validly
issued, fully paid and
nonassessable.
In the event any Holder desires to
convert any amount due or to become
due hereunder, such Holder must
provide prior notice of its
intention to convert any such
payment to the Company in writing
(the "Conversion Notice"). Each
Conversion Notice shall set forth
the requested date, no more than one
hundred twenty days nor less than
ninety days thereafter, upon which
conversion is to be effective (the
"Conversion Notice Effective Date").
Each Conversion Notice shall also
include the projected amount of the
total obligation payable to such
Holder on the Conversion Notice
Effective Date, calculated in
accordance with the terms of this
Note, and the dollar amount thereof
for which conversion is requested
(the "Converted Payment Amount").
Upon conversion, the number of
shares such Holder shall be entitled
to receive in consideration of the
Converted Payment Amount shall be
calculated by dividing the Converted
Payment Amount specified in a
Conversion Notice by thirty percent
(.30).
In the event a conversion notice is
timely received by the Company, the
Company shall take all necessary
action to cause its transfer agent
to issue the applicable amount of
common stock in the name of such
Holder and deliver the same to the
Holder as soon as practicable
following the Conversion Notice
Effective Date, but in no event more
that five business days thereafter.
Any Conversion Notice timely
received by the Company, requesting
a Converted Payment Amount in an
amount less than the entire
projected amount of the total
obligation payable to such Holder on
the Conversion Notice Effective
Date, shall require the Company, in
addition to the issuance and
delivery of the Conversion Shares,
to pay such Holder, in cash or a
cash equivalent, the balance
remaining after deducting the
Converted Payment Amount from the
total amount due and payable to the
Holder on the Conversion Notice
Effective Date (the "Post Conversion
Balance Payment") and deliver the
same to the Holder on or before five
business days following the
Conversion Notice Effective Date.
In the event the Company fails to
issue the applicable amount of
common stock in the name of such
Holder and deliver the same to the
Holder on or before five business
days following the Conversion Notice
Effective Date, or fails to pay the
entire amount of any Post Conversion
Balance Payment when due, in
addition to the Conversion Shares
and all other amounts payable
hereunder, such Holder shall be
entitled to receive additional
interest on the aggregate total of
any Converted Payment Amount for
which Conversion Shares have not
been delivered and any unpaid Post
Conversion Balance Payment at the
rate of 18% per annum, calculated on
per diem basis, commencing on the
Conversion Notice Effective Date and
accruing until the date all
Conversion Shares and the entire
unpaid Post Conversion Balance
Payment is received by such Holder
(the "Additional Interest").
Additional Interest shall constitute
interest hereunder with respect to
any other provision of this Note.
B. Warrants: In partial
consideration of this Note the
Company hereby agrees to issue to
the Payee warrants to purchase from
the Company Three Hundred Thirty
Three Thousand Three Hundred Thirty
Three (333.333) shares of duly
authorized, validly issued, fully
paid and nonassessable Common Stock
of the Company, par value $0.01 per
share at the exercise price of
Thirty Cents ($.30) per share. (the
"Warrants"). The Warrants shall
expire not less than five years from
June 30, 2002, be exercisable on not
less than ninety days notice to the
Company and be otherwise exercisable
and include terms and provisions
similar to other warrants issued by
the Company in similar private
placement investments.
3. MISCELLANEOUS.
3.1. Enforceability of Existing Note. This Amendment is being executed
and entered into without prejudice to the rights, remedies or powers of the
Lender under or in connection with the Existing Note, applicable laws or
otherwise, and except for the conditional waivers expressly described herein,
nothing contained in this Agreement is intended to or shall be construed as a
waiver of any breach, violation, Default or Event of Default, whether past,
present or future, under the Existing Note in its original form or as amended by
this Agreement, or a forbearance by the Lender of any of its rights, remedies or
powers against the Borrower. The Lender hereby expressly reserves all of its
rights, powers and remedies under or in connection with the Existing Note or the
Existing Note as amended hereby. All of the provisions of the Existing Note not
expressly amended herein shall remain in full force and effect, it being
expressly stated and understood that this Agreement is not a termination of the
Existing Note, but is a modification (and, as modified, a continuation) of the
Existing Note. All remaining terms of the Existing Note not addressed or amended
hereby shall remain in full force and effect as if this Agreement had never been
executed. Effective on and concurrent with the execution hereof, Borrower
acknowledges and agrees that the Note, as amended and restated hereby, is
reaffirmed in all respects.
3.2 Entire Agreement. The Existing Note as amended by this Agreement
constitutes he complete agreement between the parties with respect to the
subject matter hereof and thereof, supersedes all prior agreements, commitments,
understandings, or inducements (either oral or written, expressed or implied)
and may not be modified, altered, or amended except by a written agreement
signed by Lender and Borrower as applicable. Each party to this Agreement
acknowledges that no representations, inducements, or agreements, oral or
otherwise, have been made by any party, or anyone acting on behalf of such
party, which are not embodied herein, and no other agreement, statement or
promise not contained in the Existing Note as amended by this Agreement shall be
valid or binding. The parties hereto have had an opportunity to consult with
their respective attorneys concerning the meaning and the import of this
Agreement and each has read this Agreement, as signified by their signatures
below, and is executing the same for the purposes and consideration herein
expressed.
3.3 No Waiver. Neither Lender's failure, at any time or times, to
require strict performance by Borrower of any provision of the Existing Note,
nor Lender's failure to exercise, nor any delay in exercising, any right, power,
or privilege under this Agreement or the Existing Note shall (a) waive, affect,
or diminish any right of Lender hereafter to demand strict compliance and
performance therewith or (b) operate as a waiver thereof except as expressly set
forth herein. Any suspension or waiver of a Default, Event of Default, or other
provision under the Existing Notes or the Existing Note as amended by this
Agreement must be in writing signed by Lender to be effective and shall not
suspend, waive, or affect any other Default or Event of Default, whether the
same is prior or subsequent thereto and whether of the same or of a different
type, and shall not be construed as a bar to any right or remedy that Lender
would otherwise have had on any future occasion.
3.4 Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be deemed to have been received
(a) upon hand delivery (receipt acknowledged) or facsimile (with transmission
confirmation report) at the address or number designated below (if delivered on
a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered on a
business day after during normal business hours where such notice is to be
received); or (b) on the business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
If to LENDER:
Michele Norwood
485 Wales Court
Coppell, Texas 75019
If to BORROWER:
VISEON, INC.
2620 S. Maryland Parkway, #309
Las Vegas, Nevada 89109
Facsimile: 972-818-7343
Any party may require any other party to serve notices in accordance with this
Section at a different address or directed to another person for receipt of
notices, if such party so designates such other person or address in writing
delivered to every other party in accordance with this Paragraph.
3.5 Successors and Assigns. The Existing Loan Agreement as amended by
this Agreement and the Term Notes shall be binding upon, and shall inure to the
benefit of, Borrower, Lender and their respective successors and permitted
assigns, except as otherwise provided herein or therein. Borrower shall not
assign, transfer, hypothecate, or otherwise convey its rights, benefits,
obligations, or duties under the Existing Loan Agreement as amended by this
Agreement or the Term Notes without the prior written consent of Lender. Any
such purported assignment, transfer, hypothecation, or other conveyance by
Borrower without the prior express written consent of Lender shall be void. The
terms and provisions of the Existing Loan Agreement as amended by this
Agreement, the Term Notes and the other documents and agreements executed in
furtherance thereof are for the purpose of defining the relative rights and
obligations of Borrower and Lender with respect to the transactions contemplated
hereby and thereby, and there shall be no third party beneficiaries of any of
the terms and provisions of any of such agreements or documents. Lender reserves
the right at any time to create and sell in its entirety or a participation in
any portion of the Term Loan, the Term Notes and the Existing Loan Agreement as
amended by this Agreement and to sell, transfer or assign any or all of its
right, title or interest in and to the same, and Borrower consents to Lender's
sale of any participations in, at any time or times, the Term Loan, the Term
Notes and the Existing Loan Agreement as amended by this Agreement or of any
portion thereof or interest therein, including Lender's rights, title,
interests, remedies, powers, or duties thereunder, whether evidenced by a
writing or not, and to the sale, assignment and transfer of any or all of its
right, title or interest in and to the Term Loan, the Term Notes and the
Existing Loan Agreement as amended by this Agreement.
3.6 Presumption against Scrivener. No provision of this Agreement shall
be construed against or interpreted to the disadvantage of any party hereto by
any court or other governmental or judicial authority by reason of such party's
having or being deemed to have structured, drafted or dictated such provision.
3.7 Law Governing Agreement. This Agreement is made and entered into
and is to be at least partially performed in Clark County, Nevada. It shall be
interpreted, construed and enforced and its construction and performance shall
be governed by the laws of the State of Nevada applicable to agreements made and
to be performed entirely within such State without regard to principles of
conflicts of laws, except to the extent that federal law may apply.
3.8. Partial Invalidity. Each part of this Agreement is intended to be
separate. If any term, covenant, condition or provision hereof is illegal or
invalid or unenforceable for any reason whatsoever, such illegality, invalidity
or unenforceability shall not affect the legality, validity or enforceability of
the remaining parts of this Agreement and all such remaining parts hereto shall
not be impaired or invalidated in any way, but shall be legal, valid and
enforceable and have full force and effect as if the illegal, invalid,
unenforceable part has not been included.
3.9 Variations in Pronouns. Wherever the context shall so require, all
words herein in the male gender shall be deemed to include the female or neuter
gender and vice versa, all singular words shall include the plural, and all
plural words shall include the singular. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the context
may require.
3.10. Execution and Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed to be an original, and all of which taken together shall constitute but
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Agreement to any other Loan Document by facsimile transmission
shall be effective as delivery of a manually executed counterpart thereof.
3.11 Headings. The headings used in this Agreement are for
administrative purposes only and do not constitute substantive matter to be
considered in construing the terms and shall not affect the interpretation of
this Agreement. All references herein to Sections, Paragraphs, subsections, and
clauses, shall be deemed references to such parts of this Agreement, unless the
context shall otherwise require. A reference to an article or section will mean
an article or section in this Agreement, unless otherwise explicitly set forth.
The titles and headings in this Agreement are for reference purposes only and
will not in any manner limit the construction of this Agreement. For the
purposes of such construction, this Agreement will be considered as a whole. The
terms "including" and "include" as used in this Agreement will be deemed to
include the phrase "without limitation."
3.12 Attorney's Fees and Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements from the offending party, in addition to any other relief to which
it may be entitled.
3.13 Further Assurances. At any time and from time to time after the
date hereof, at the request of Lender, and without further consideration,
Borrower will execute and deliver such other and further instruments and
documents, and take such other action as Lender may reasonably deem necessary,
convenient or desirable in order to more effectively assist Lender in exercising
its rights with respect hereto, and realizing the benefits created by this
Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
on this30th day of June 2003, as evidenced by their respective signatures below.
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BORROWER:
VISEON, INC.
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By: John Harris
Its: President
LENDER:
MICHELLE NORWOOD
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